Expulsion of seriously ill migrants: a new ECtHR ruling reshapes ECHR and EU law

In what is possibly one of the
most important judgments of 2016, Paposhvili v. Belgium,
the Grand Chamber of the European Court of Human Rights (ECtHR) has memorably
reshaped its case law on when Article 3 ECHR (which bans torture or other
inhuman or degrading treatment) applies to the expulsion of seriously ill
migrants. In a unanimous judgment, the Court leaves behind the restrictive
application of the high Article 3 threshold set in N. v. the United
Kingdom and pushes for a more rigorous assessment of the risk of ill-treatment
in these cases. For us at the Human
Rights Centre of Ghent University, it was a thrill to intervene as a
third party in such an important case. In our
third party intervention we submitted that Paposhvili offered a unique opportunity to depart from the
excessively restrictive approach adopted in N. We are delighted that the
Grand Chamber has seized the opportunity to re-draw the standards in this area
of its case law in a way that does fuller justice to the spirit of Article 3.

This main part of the post
addresses the ECtHR’s interpretation of the ECHR in Paposhvili, while in the Annex to this post, Steve Peers considers
its application within the scope of EU law.

The ECHR judgment

Mr. Paposhvili, a Georgian
national living in Belgium, was seriously ill. He claimed that his expulsion to
Georgia would put him at risk of inhuman treatment and an earlier death due to
the withdrawal of the treatment he had been receiving in Belgium (for more on
the facts, see my previous post).
He died in Belgium last June, while his case was pending before the Grand
Chamber. The Court did not strike his application out of the list. It found
that “special circumstances relating to respect for human rights” required its
continued examination based on Article 37 § 1 in fine ECHR (§ 133).
The Court held that there would have been a violation of Article 3 if Belgium
had expelled Mr. Paposhvili to Georgia without having assessed “the risk faced
by him in the light of the information concerning his state of health and the
existence of appropriate treatment in Georgia.” It found a similar violation of
Article 8 if Belgium had expelled him without having assessed the impact of his
return on his “right to respect for his family life in view of his state of
health.”

Opening Up “Other Very Exceptional Cases”

The Chamber judgment in Paposhvili followed N. and Yoh-Ekale Mwanje
v. Belgium where the Court had taken into account that “the
applicants’ condition had been stable as a result of the treatment they had
been receiving, that they were not ‘critically ill’ and that they were fit to
travel” (§ 119). The Chamber thus concluded that though Mr. Paposhvili suffered
from “a fatal and incurable disease … his conditions are all stable and under
control at present; his life is therefore not in imminent danger and he is able
to travel” (§ 120).

As readers might remember, the N. Grand Chamber established that
removing a non-national suffering from a serious illness to “a country where
the facilities for the treatment of that illness are inferior to those
available in the Contracting State may raise an issue under Article 3, but only
in a very exceptional case” (§ 42). The Grand Chamber concluded that the
applicant’s circumstances in N. were not exceptional, as found in D. v. United Kingdom (§
42). D was critically ill, close to death, and had no prospect of medical care
and family support in his home country. The N. Grand Chamber,
however, left a window open: it did not exclude that “there may be other
very exceptional cases where the humanitarian considerations are equally
compelling” (§ 43, emphasis added).

In our third party intervention,
we argued that being medically stable and fit to travel as a result of the
treatment received should not be a determining criterion in allowing an expulsion.
We respectfully invited the Court to develop a less extreme approach, one that
considered the difference between applicants’ suffering in the sending state
and the suffering they would face in the receiving state. The aim, we
submitted, should be to determine whether the reduction of applicants’ life
expectancy and the deterioration of their quality of life would be such as to
reach the level of severity required by Article 3. The applicant argued that
his expulsion to Georgia would place him at risk of “a severe and rapid
deterioration in his state of health leading to his swift and certain death” (§
148). He asked the Court “to go beyond its findings in N. v. the United Kingdom” and to define
“a realistic threshold of severity that was no longer confined to securing a
‘right to die with dignity’” (§ 149).

The Paposhvili Grand Chamber enters through the window N. left open. It notes that since N. no other “very exceptional cases” had
been found (§ 178). It importantly recognizes that the application of Article 3
only to persons close to death has deprived those whose condition was less
critical but who were still seriously ill from “the benefit of that provision”
(§ 181). In a pivotal paragraph, the Grand Chamber considers

… that the
“other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom (§ 43)
which may raise an issue under Article 3 should be understood to refer to
situations involving the removal of a seriously ill person in which substantial
grounds have been shown for believing that he or she, although not at imminent
risk of dying, would face a real risk, on account of the absence of appropriate
treatment in the receiving country or the lack of access to such treatment, of
being exposed to a serious, rapid and irreversible decline in
his or her state of health resulting in intense suffering or to a significant
reduction in life expectancy. The Court points out that these situations
correspond to a high threshold for the application of Article 3 of the
Convention in cases concerning the removal of aliens suffering from serious
illness (§ 183). Emphasis added.

This is a graceful move that
softens the unduly restrictive approach that had so far been followed in cases
concerning the expulsion of seriously ill migrants. Paposhvili thus comes to fill what Judge Lemmens calls a “gap
in the protection against inhuman treatment” (concurring opinion in Paposhvili § 3) by including as
exceptional more than just cases of imminent death. My first impression is that
the Court does not formally leave behind N.’s exceptional character and
the high threshold of Article 3 in cases concerning the expulsion of seriously
ill non-nationals (see last sentence § 183 and Judge Lemmens’ opinion § 3).
Rather, it appears to open up what in practice has resulted in a limited
application of the high threshold. The commendable effect of the Court’s move
is, in any event, a less extreme approach more compatible with the spirit of
Article 3. Elements of both our third party intervention and the applicant’s
arguments are reflected positively in the Grand Chamber reasoning in this
regard.

Real Rather Than Theoretical Access to “Sufficient” and “Appropriate”
Care

In our third party intervention
we proposed that the risk assessment should consider the adequacy of the
medical care available in the receiving state and the person’s actual access to
such care. The question, we argued, is not just whether adequate treatment is
generally available but, crucially, whether the available treatment would in
reality be accessible to the person concerned. The applicant argued that the
alleged Article 3 violation should be examined “in concreto,” taking into
consideration, among other things, “the accessibility of treatment in the
country of destination” (§ 139).

The Grand Chamber seizes the
occasion to meticulously set out a range of procedural duties for the domestic
authorities in the ECHR state parties. All these duties point in one clear
direction: a more rigorous assessment of the risk as required by the absolute nature
of the Article 3 prohibition (Saadi v. Italy §
128). In assessing the alleged risk of ill-treatment, the domestic authorities
should verify whether the care available in the receiving state is “sufficient and appropriate in
practice for the treatment of the applicant’s illness so as to prevent him
or her being exposed to treatment contrary to Article 3” (§ 189, emphasis
added). The domestic authorities should also consider “the extent to which the
individual in question will actually have access to
this care and these facilities in the receiving State” (§ 190, emphasis added).
Referring to existing case law, the Court points to several factors to be taken
into account: “cost of medication and treatment, the existence of a social and
family network, and the distance to be travelled in order to have access to the
required care” (§ 190).

Duty to Obtain Assurances from the Receiving State

With reference to Tarakhel(a 2014 ECtHR ruling on the application of the EU’s Dublin rules on
allocation of asylum responsibility), our third party intervention proposed
that Article 3 impose on the domestic authorities in the returning state the
procedural duty to seek or obtain assurances from the receiving state that the
person concerned would actually have access to the treatment s/he needed. We
argued that access to appropriate medical care should not be a theoretical
option, but a real and guaranteed one, and the burden of proving that such a
real option exists should lie on the expelling state (on assurances and the
benefits of adopting this path, see Eva Brems’ commentary on Tatar v. Switzerland).

On this point, the Grand Chamber
states in paragraph 191:

Where, after
the relevant information has been examined, serious doubts persist regarding
the impact of removal on the persons concerned – on account of the general
situation in the receiving country and/or their individual situation – the
returning State must obtain individual and sufficient assurances from the receiving
State, as a precondition for removal, that appropriate treatment will be
available and accessible to the persons concerned so that they do not find
themselves in a situation contrary to Article 3 (on the subject of individual
assurances, see Tarakhel, cited
above, § 120).

Conclusion

There is so much more to say
about the Court’s reasoning in Paposhvili.
I have highlighted some of its most remarkable Article 3 principles. Together
with others, such as the one establishing when the responsibility of the
returning state is engaged (§ 192), these principles firmly move a body of the
Court’s case law closer to its principles on the absolute nature of the Article
3 prohibition.

First of all, it’s necessary to
explain the existing EU law position, set in the Abdida and M’Bodj
judgments of the ECJ, which was referred to in the ECtHR judgment (paras 120-22),
and which I discussed further here.
In short, ‘medical cases’ are not within the scope of EU asylum law, either as
regards refugee status or subsidiary protection (M’Bodj). However, if the person concerned faces an expulsion order,
then the Returns
Directive applies. (Note that the latter Directive doesn’t apply to the UK,
Ireland or Denmark.)

Although the Returns Directive
was mainly intended to ensure removal of irregular migrants from the territory,
in ‘medical cases’ (at least), as interpreted by the ECJ in Abdida, it has the opposite effect. According
to the Court, the requirement in Article 5 of the Directive to ‘respect the
principle of’ non-refoulement means
that irregular migrants who fall outside the scope of EU asylum law but
nevertheless face an Article 3 ECHR risk, as defined in the case law of the
ECtHR, cannot be removed. Moreover, in further displays of legal alchemy, the
ECJ ruled that the challenge to their removal must have suspensive effect, and they
must receive the necessary health care and social benefits.

The ECJ has not developed this
case law since, although further relevant cases are pending. In MP,
the Court has been asked to clarify the line between asylum cases and medical
cases, where the medical conditions are more directly linked to persecution or serious
harm suffered in the country of origin. In Gnandi,
it has been asked to clarify the suspensive effect of a legal challenge in medical
cases, following a failed asylum application. In K.A.
and others, the Court has been asked about the requirement to ‘take due
account’ of family life in Article 5 of the Returns Directive; its ultimate
ruling might be relevant to the ‘non-refoulement’ aspect of the same clause by
analogy. Equally in Nianga
the Court has been asked whether Article 5 applies to the decision to issue a
return decision or removal order in the first place: a crucial point because if
it does not apply, the person concerned might well fall outside the scope of EU
law entirely.

What impact will the new ECtHR
ruling have on the interpretation of EU law? First of all, there’s nothing to
suggest it will, by itself, move the dividing line between asylum cases and
medical cases, as applied by the ECJ. So we are still looking at the interpretation
of the Returns Directive, if that Directive applies.

Since the ECJ committed itself to
follow the case-law of the ECtHR as regards medical cases when interpreting the
non-refoulement provision of the
Returns Directive, it should follow that the new ECtHR ruling applies to the
Directive too. Therefore this enlarges the group of people who can benefit from
the specific provisions of EU law as interpreted by the ECJ, as regards
suspensive effect of appeals and access to health care and social benefits.

Equally the ECtHR’s strong stress
on the procedural elements of such cases logically applies by analogy to cases
falling within the scope of the Returns Directive. While the ECJ in the Abdida judgment did not refer to its own
jurisprudence on the right to a hearing for irregular migrants (discussed here),
it is now necessary to update that approach in light of the ECtHR ruling, given
the strong link which the latter judgment establishes between the procedural and
substantive aspects of what I have referred to as ‘alternative protection’. The
ECJ will have an opportunity to address this issue in the months to come, in
the pending cases referred to above.

While the ECtHR judgment referred
to a need to cooperate with the country of origin in order to check conditions
there, in the EU context this might arguably in some cases entail by analogy a
check on health conditions in another
Member State, which would be responsible for that person under the Dublin
rules. The ECJ has yet to determine how its interpretation of the Returns
Directive in medical cases fits together with the application of the Dublin
rules, which in principle apply if the person concerned has at one point
applied for international protection (refugee status or subsidiary protection)
within the EU. (Mr. Paposhvili was originally subject to the Dublin rules, but
it seems that the plan to remove him to Italy pursuant to those rules petered
out).

Finally, it should be noted that
the ECtHR also found a breach of Article 8 ECHR (the right to family life), on similar
procedural grounds. This might be relevant to interpretation of the EU’s family
reunion Directive, for those who fall within the scope of that Directive
and who argue on the basis of the factors to consider during expulsion
proceedings pursuant to Articles 17 and 18 of that law.